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Legal Nuance and the Need for Empathy: Interview with Jamie Chai Yun Liew

Legal Nuance and the Need for Empathy: Interview with Jamie Chai Yun Liew

Posted on Sep 24, 2018

Jamie Chai Yun Liew is an associate professor at the University of Ottawa’s Faculty of Law and a practicing refugee and immigration lawyer. Professor Liew advocates for migrants who are continually marginalized by legal barriers to citizenship and equality in Canada, with a specific focus on gendered issues in immigration and refugee law. Professor Liew was interviewed by Teodora Pasca, who holds a Bachelor’s Degree from the University of Toronto and is now a student at the university’s Faculty of Law.

Much social change in the area of migrants’ rights depends on a shift in perspective. As an academic and a lawyer, Professor Jamie Liew acknowledges the crucial role legal professionals have to play in that process.

“Our challenge is to show that there is a nuanced understanding of the law,” Liew says. “…The law exists in different ways and [is] implemented in different ways depending on who you are.”

Driven by legal feminism, Liew’s academic work has explored the intersections between immigration and refugee law and gender discrimination, as well as the ways in which Canadian law can marginalize those seeking protection within its bounds. Liew has written extensively about barriers to citizenship, and litigated cases involving migrants from a diverse range of backgrounds.

Liew acknowledges that many refugee claims may go unrecognized due to difficulties in understanding others’ points of view. Part of expanding our understandings of asylum means acknowledging that some claimants don’t fit with our preconceived notions of who they “should” be to qualify for protection in Canada.

Liew’s first refugee case was that of Bethany Smith, a US army soldier who faced intense persecution for her sexual identity during the era of “don’t ask, don’t tell” policies — and consequently sought refuge in Canada after she left the military. In Liew’s eyes, the Smith case exemplifies the difficulty in representing a claimant who doesn’t fit the typical “refugee norm.” Though Smith had a strong case in favour of protection, Liew tells me, she experienced difficulties when asked to demonstrate why Canada should extend asylum to a person coming from another democratic country.

Indeed, privilege or lack of knowledge may prevent us from seeing how people in different circumstances might have different experiences from our own — which can sometimes manifest in a lack of empathy for those seeking refuge.

The idea of a migrant being “illegal,” for example, is based in part on prejudicial understandings of borders and why people might cross them. To the best of her ability, Liew has tried to shift the emphasis away from that label. In her view, the focus should be not on “illegality,” but on the fact that migrants are coming to Canada in the first place, therefore holding Canada to its international obligations to manage the border “in a way that is compassionate, humanitarian, and efficient”.

As a woman and a person of colour within the legal profession, Liew is no stranger to bigotry herself. “It’s very unfortunate that young women [and] racialized women may be confronted at the most surprising times with questions of whether [they] are in the proper place,” she says. Liew explains that judges and Immigration and Refugee Board Members have sometimes stereotyped her as inexperienced or unqualified based on how she looks, even going as far as to make inappropriate comments in front of her clients.

While it is frustrating that prejudice remains alive and well within the profession, Liew thinks productive discussion is the way forward. “It is an ongoing challenge, and it’s one that can be met with constant conversation about how women can cope with this and deal with this,” she says. “It’s an unfortunate fact of life that we have to sometimes prove ourselves more than our male counterparts.”

When asked what Canada can do to improve its treatment of refugees, Liew mentions the need to see immigration not as a temporary pathway into Canada, but a permanent investment in Canada. Liew stresses that legal barriers to family reunification must be challenged, such as by granting discretion to immigration officials to waive procedures that interfere with that objective.

One area in which increased discretion would be useful, Liew advises, is with respect to the continued dependence on documentary forms within Canada’s immigration system. In the context of reunification, overly restrictive regulations can force officials to permanently exclude family members from recognition if they are not written down on the forms — even if the omission was due to a mistake or confusion about the purpose of the paperwork.

“The system is not meant to punish people for clerical mistakes or misunderstandings,” Liew says. “People forget that sometimes. They adhere to the rules so strictly that they forget the purpose of those rules.”

Liew’s advice to undergraduate students, especially those interested in immigration law, is to travel and learn as much as possible about other places and cultures. Liew also suggests students develop their interview skills: understanding a claimant’s perspective is integral to learning how to tell their story.

For her part, Liew is happy that immigration and refugee law is drawing more attention in the mainstream. After all, just having laws to protect migrants is not enough — we need to ensure legal protections are implemented in practice. “We certainly need more people pushing the social justice message when it comes to refugees and immigration and how the law applies to them”.

Notes from the Field

CARFMS Notes from the Field is based on a conversation between an undergraduate student finishing their degree or a postgraduate student starting off their degree, and a more established researcher in refugee and forced migration studies. While all Notes will be different, the unifying thread connecting them is a focus on recent developments in research, law, policy, and approaches within Canada to issues of asylum, borders, and immigration. Each student will also find out if the researcher has advice to dispense to scholars at the end of undergraduate studies, and if there is one key change that we should be making about how refugees are treated in Canada. At the end of the initial run of Notes, will publish this advice together as a guide and inspiration.

If you would like to participate as either an interviewer or interviewee, please contact Dr. Stephanie J.